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An area of law that deals with intangible property
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Patents
Copyright
Trademarks

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Any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law.

 Patents give the inventor a monopoly on selling the product for 20 years
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Three kinds of patents include:
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Patents on inventions with utility
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Patents on designs
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Patents that protect plants (e.g., flowers)

 The law of copyright gives the author, or the owner of the copyright, the sole and exclusive right to reproduce the copyrighted work in any form for any reason.

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The right of reproduction
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The right of preparation of derivative works
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The right of public performance of the work
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The right of public display of the work
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The right of public digital performance of a sound recording (with exceptions)

What Can Be Copyrighted?
Expressive and Original Creation
1. Literary works
2. Musical works
3. Dramatic works, including accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic and sculptural works
6. Motion pictures /audiovisual work
7. Sound recordings

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Facts
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Trivial materials such as titles or slogans
(but some could be “trademarked”)
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Ideas
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Utilitarian goods
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Methods, systems, mathematical principles, formulas and equations

 The work must be original: not a reproduction

Compilations of factual information:
The “sweat of the brow” doctrine
 A legal proposition that even though facts are not copyrightable, a person who invests great energy and hard work in amassing these facts deserves some reward for this hard work.
 Accepted by courts only if certain originality of the effort can be established.

Compilations of factual information:
Business Directories
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O’Dwyer Co. v. Media Marketing (1991)
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O’Dwyer’s listing of PR agencies was a copyrightable compilation.
 It was ruled to be original by its research and criteria for inclusion of agencies

Compilations of factual information:
Telephone Books and Databases
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Feist Publications, Inc. v. Rural Telephone
Service Co., Inc. (1991)
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While some new compilations of facts may be protected by copyright, the Court said, there was no novelty or originality in the compilation of these materials
(a telephone book)

Collective work
 Collective work, compilations made up of
individual contributions (e.g., an anthology of poetry) is copyrightable .

 Material based on existing work is copyrightable as long as the material has a sufficient amount of originality (e.g., condensation, translation)
 However, a consent must be obtained from the owner of the copyright to the original work

 The work must be fixed in a tangible medium
(paper, tape, video, disk, etc.)

 Copyright law protects the expression of the story – the way it is told, the style and manner in which the facts are presented
 Copyright law does not protect the facts in the story; other journalists may use the facts you have gathered to write their news story

 Acquired at the moment of creation in a tangible medium
 No formal requirements

 Copyright ownership begins at the moment a work that can be protected is created (in a tangible medium).
 There is no formal procedure required for copyright protection.
 A NOTE: ownership of physical object is not the same as copyright ownership (e.g., letters received from a friend).

 Individual author
 Joint Authorship
 Work Made for Hire (was the author an employee?)
 Government Works

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A "joint work of authorship" is a work prepared by two or more authors with the intention that their contributions will be merged into inseparable or interdependent parts of a unitary whole.
"Inseparable" applies when individual contributions are blended (e.g., computer programs)
“Interdependent" refers to works with separable elements
(e.g., lyrics and music).
The prevailing view is that a joint author's contribution must be independently copyrightable.

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The prevailing view is that a joint author's contribution must be independently copyrightable.
The minority view is that a contribution of more than de minimus authorship should be credited even if not independently copyrightable
The Second and Ninth Circuits have long required that a putative joint author's contribution be "independently copyrightable," while the Seventh Circuit has more recently followed the minority view

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Joint authors need not make equal contributions.
The default rule is that the copyright ownership is equal, but the default ownership allocation can be varied by written contract.

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In a work made for hire situation, the "author" of the work is no longer the individual who created the work. Instead, the "author" is considered to be the entity which hired the actual creators of the work
The Copyright Act limits the work made for hire doctrine to two specific situations: a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned for use

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The determination of whether an individual is an employee: the control exerted by the employer over the employee the control exerted by the employer over how and where the work is done; the supplying of equipment for the employee's use; and the payment of benefits and the withholding of taxes.

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In order for the work of an independent contractor to be a work made for hire, the following facts must exist: the work must be specially ordered or commissioned; there must be a written agreement between the parties specifying that the work is a work made for hire.

 Community for Creative Non-Violence v. James Reid
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James Reid, sculptor from Maryland.

 Rights a Publisher May Purchase From a Free-Lancer
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All rights - ownership of the complete story/photograph
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First serial rights - the right to use the piece for the first time in a publication
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One-time rights - the right to use a piece just one time

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Tasini sold his work to the New York Times
Later the N.Y. Times sold that work to databases companies (e.g., Lexis/ Nexis).
Tasini filed lawsuits arguing that the he has the right to the original work.
The Supreme Court agreed: Although newspapers have the republication rights, selling content to database companies does not constitute republication

 All government work is precluded from copyright ownership
 All government work can be copied and published
(or republished)
 EXCEPTIONS: work produced by private consultants/contractors

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Published before 1923: copyright has expired
Published 1923-1963: 95 years (if renewed in 28 th year)
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Works created 1978 and after are protected for the life of the author plus 70 years
Works created 1978 and after as “work for hire” are protected for 95 years from publication or 120 years from creation, whichever is shorter
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See other categories in the book, p. 331

 A work falls into the public domain and may be copied by any person for any reason without payment of royalty to the original owner

 ONCE MORE: Copyright ownership begins at the moment a work that can be protected is created and t here is no formal procedure required for copyright protection.
 However, a Copyright Notice and/or
Registration can be advantageous in case of infringement

Copyright Notice:
Copyright © 2013 by…..
 Under International and American Law the affixing of the Notice is not required.
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However, it is recommended to prevent
“innocent infringement.”
The “Innocent infringer” is someone who claims he/she didn’t know that the work was copyrighted because there was no notice (The U.S. Copyright
Law protects such persons from liability from infringement).

 Registration is not necessary to establish copyrights,
 However, it must be done before filing a lawsuit in case of infringements
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To register a copyrighted work with the federal government, see details at http://www.copyright.gov/

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Anyone who violates the exclusive rights of the copyright holder is guilty of infringement of copyright.
Exclusive rights:
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The right of preparation of derivative works
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The right of public performance of the work
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The right of public display of the work
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The right of public digital performance of a sound recording

Special case of
Music and Sound Recording
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Synchronization Licenses (to reproduce music in conjunction with video).
Performance rights societies for broadcasting sound frecording:
Broadcast Music Inc (BMI) and The American
Society of Composers, Authors and Publishers
(ASCAP)
Blanket licenses cost about 2% of the total station revenue

 The Criteria to Determine Infringement
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Is the copyright on the plaintiff’s work valid?
Did the defendant have access to the plaintiff’s work prior to the alleged infringement?
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Are the two works the same or substantially similar?

George Harrison vs Bright Tunes Music Corp.
George Harrison accused of plagiarizing
‘
My
Sweet Lord
’
(1971) from a 1962 song
“ He’s So Fine ” recorded by the Chiffons.

George Harrison vs Bright Tunes Music Corp.
George Harrison accused of plagiarizing
‘
My
Sweet Lord
’
(1971) from a 1962 song
“ He’s So Fine ” recorded by the Chiffons.

 A suit was brought against Michael Bolton by the Isley Brothers for allegedly lifting parts from their original song Love is a
Wonderful Thing

 The district court found in favor of the Isley
Brothers.
 The Isley Brothers were awarded
$5.4 million , the calculation based on sixtysix percent of past and future royalties

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Budka Suflera Takie Tango
Power Station Drunk Tango
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Budka Suflera Bal
Lady Gaga

'Happy Birthday to You‘ Is Under
Copyright (owned by Warner Music Group)
 If you want to sing it at your home at a birthday party you don't have to pay anything, because that is a private performance
 But if you want to use it in a television show, a movie, or a television commercial, you'll pay anywhere from $5,000 to $30,000 for those rights.
 The song generates approximately $2 million in royalties every year

 Demand to cease the unauthorized use (a ceaseand-desist letter)
 Request a judge to issue an injunction to order the unauthorized use
 File a lawsuit for damages

 A Plaintiff May:
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Ask the court to assess the defendant for any damage they have suffered
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Ask for the reimbursement of profits made by the infringer from pirating the protected work
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Receive statutory damages
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Copyright infringement is also a criminal offense
(usually prosecuted in a straightforward piracy cases)

 Permits limited use and copying of an original creation that has been properly copyrighted without the owner’s consent and without paying a royalty

Copyright Act of 1976:
 Factors To Be Considered In Determining Fair
Use
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The purpose and character of the use
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The nature of the copyrighted work
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The amount and substantiality of the portion used in relation to the copyrighted work as a whole
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The effect of the use on the potential market for or value of the copyrighted work

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Publishing copyrighted material on the Internet constitutes public display.
Thus, it violates owner’s exclusive right to the material.
ISP companies have immunity from copyright infringement by users
 See also: Playboy v. Frena 1993 (page 357 in your text).

 Napster, Inc. Case
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In 2001, the 9 th Circuit Court of Appeals ordered Napster to stop facilitating the free transfer of recorded music
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The court ruled that the music service was abetting copyright infringement by its users

 Any word, symbol or device (or combination of the three) that differentiates an individual’s or company’s goods and services from competitors
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The function of trademark law is to stop confusion in the marketplace
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Brand names, shapes, slogans, telephone numbers and colors can all be trademarked

 Four Main Functions of Trademarks and Service
Marks
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Distinguish one seller’s goods from another’s
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Signify all goods bearing the trademark or service mark come from a single source
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Signify all goods bearing the mark are of an equal quality level
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Serve as a prime instrument in advertising and selling

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Infringement
Dilution
Unfair competition